Friday, January 10, 2014

Ind. Law - "Companion bill tries to clarify gay amendment"

Yesterday HJR 6, the proposed constitutional ban on same sex marriage and the like passed for the first time in 2012, was reintroduced and assigned a new number, HJR 3. But this year it was accompanied by a companion bill, HB 1153. Here is some coverage of yesterday's action.

Republicans threw a new wrinkle into the already-controversial debate over prohibiting gay marriage in the Indiana Constitution by introducing a separate bill Thursday to clarify the intent of the ban.

The 2 1/2 -page House Bill 1153 seeks to make clear the legislative intent behind a two-sentence constitutional amendment.

The companion bill could help garner support from wavering lawmakers and pre-empt an adverse judicial ruling, leaders said.

But just after its introduction, the GOP leaders of the Indiana House and Senate – both lawyers – couldn’t agree on whether the constitutional ban would bar future civil unions.

Republican House Speaker Brian Bosma said civil unions would not be allowed in Indiana but domestic partnerships would be. Long said he wasn’t clear whether civil unions would be prohibited.

“They’ve got some sort of monster they’ve created, and now they’re trying to make the monster prettier,” said Senate Democratic Leader Tim Lanane of Anderson. * * *

There was no bill on the amendment’s intent in 2011 when the legislature – with a number of different members – voted on it.

Long called the clarifying bill “unprecedented” but said it was necessary to allay some fears of what the amendment does and doesn’t do.

The proposed amendment says “only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana,” which is the same as state law.

But the second line goes further, saying “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Opponents believe the second sentence clearly bans future civil unions but also that it could affect universities or businesses giving health care benefits to same-sex couples, could nullify human rights ordinances protecting gays and lesbians and could even strip domestic violence laws protecting unmarried people.

House Bill 1153, carried by Rep. Eric Turner, R-Cicero, attempts to eliminate concerns in these areas. Turner also wrote the ban in House Joint Resolution 3, known previously as HJR6.

“There are some valid questions raised about the second sentence of the amendment. There have also been some questions raised – I’d call them red herrings,” Bosma said. “So it seemed to make a lot of sense to address the issues.”

Democrats pointed out that a bill doesn’t trump the Indiana Constitution. They said a judge could rule the bill itself violates the state’s highest document. Or in five years, the legislature could change or repeal the “intent.”

“Supporters of the amendment seem to finally understand that the language they want to permanently insert into our state’s founding document is deeply flawed,” said Megan Robertson, campaign manager for Freedom Indiana, a bipartisan coalition fighting the proposed amendment.

“Unfortunately, instead of addressing the amendment’s defects through proper channels, they’re trying to sidestep and obfuscate the process by introducing a bill they think explains away the potential harm to Hoosier families.”

She said the solution is simple – scrap the current language and start over. But Bosma said it’s time to bring the decade-long discussion to a close one way or another.

The first hearing on HJR3 and the clarifying bill will be at 10 a.m. Monday before the House Judiciary Committee.

Here is the story in the Indianapolis Star, reported by Barb Berggoetz and Tony Cook. A few quotes:

The fiery debate over a state constitutional amendment that would ban gay marriage is headed for a hearing Monday, but an effort by Republican lawmakers to quell some concerns about the measure could further muddy the issue.

After months of lying low on the proposal, House Republicans filed a resolution Thursday that would send the amendment to voters in November.

But they also introduced a wild card: a companion measure, House Bill 1153, that seeks to clarify the amendment's intent. * * *

But legal experts say it opens up a Pandora's box of legal questions if the same-sex marriage ban is passed and later challenged in court, as it almost certainly will be.

Jennifer Drobac, an Indiana University McKinney School of Law professor who has followed the same-sex marriage issue nationally, believes the bill really complicates the amendment's passage and potential challenges.

"If this is a clarification of a constitutional amendment, it has to go through the same process that the constitutional amendment goes through," she said. "How can this companion bill change the constitution, if this bill hasn't been passed by the voters or gone through two legislatures?"

In Indiana, a constitutional amendment needs to pass two separately-elected General Assemblies and then be approved by a majority of voters in a public referendum before becoming a part of the constitution. Lawmakers already approved the amendment by wide margins in 2011 without any companion bill.

Introducing one now is "not valid," Drobac said. "Their intentions may be quite noble, but this creates a huge amount of confusion." * * *

Drobac questioned why lawmakers in support of the ban needed to tack on an extra bill if their previous claims that the amendment would not affect issues like domestic partner benefits were true.

"This is bad lawmaking. These lawmakers should know what they're doing," she said.

After all, bills on education, roads, taxes and other matters are passed every year. It’s not often, however, that legislators launch a statewide debate over a significant change to the state’s most sacred document.

So Bosma and others can attempt to downplay the issue, but the reality is that if the marriage amendment is approved in the coming weeks, this session will be remembered for that and that alone. Republicans need to accept the truth, and the truth is that when you seek to amend the constitution, that becomes the top-line item on your agenda. * * *

Bosma said he believes a companion piece of legislation will ease concerns among some who oppose gay marriage but also think the amendment goes too far. The sidebar legislation would make clear, he said, that the legislature’s intent is not to strike down an anti-discrimination ordinance in Indianapolis or same-sex couple benefits offered by universities and other public employers.

The extra legislation is needed, Bosma said, because “valid questions” have been raised about the sweeping scope of the amendment language. Think about that: House Republicans are pushing forward with something as lasting as a constitutional amendment despite “valid questions” about its language. It makes you wonder what the founders of our country, who so carefully worded our founding documents, would think.

But what is most striking about this debate, and from the Republican flirtation with a constitutional change, is what’s been missing from it. Things like passion, a coherent argument, and an explanation of why a deep source of division should be forced into the public arena.

For more than a year, House and Senate Republicans have shown little inclination to even talk about the amendment. You’d be hard-pressed to find a significant change to any constitution in recent history, anywhere in the nation, that had so little outspoken legislative support. It’s strange to think that the same lawmakers who have dodged questions about same-sex marriage want to force a statewide conversation about it

And because such marriages are already prohibited by statute in Indiana, it’s been hard to understand why a constitutional amendment is needed. Even Bosma noted Thursday that claims that the amendment vote would finally end the debate were wrong, as court challenges will follow and same-sex supporters will continue to fight against the ban.

Those with knowledge of Bosma’s thinking say he has been torn by this issue, pressured hard in different directions by key Republican constituencies of business and social conservatives. He has expressed concern to colleagues about launching the state into a 10-month-long culture war — one that would attract national attention. Still, he sat in his Statehouse office Thursday morning and defended his decision to move forward with the effort.

Politically, Bosma probably had no choice. He helped start this fight more than a decade ago. He helped push the amendment through the legislature three years ago (it must be passed twice). Changing course now could permanently damage him with key elements of the GOP base.

But in dodging that consequence, he has given Statehouse Democrats, now relegated to a steep minority, an issue to champion and perhaps a way forward as public opinions polls continue to shift away from gay marriage opponents. Every minute spent on this debate, they will argue, is a minute not spent on the issues that matter.

“Indiana just missed its last, best chance to avoid a needlessly divisive debate,” House Democratic Leader Scott Pelath tweeted as Bosma was talking with reporters. “We’re better than this.”

Posted by Marcia Oddi on January 10, 2014 08:00 AM
Posted to Indiana Law